Perin v. Peuler, 111
| Citation | 119 N.W.2d 552,369 Mich. 242 |
| Decision Date | 07 February 1963 |
| Docket Number | No. 111,111 |
| Parties | Florenda PERIN, Plaintiff and Appellant, v. Henry PEULER et al., Defendants and Appellees. |
| Court | Michigan Supreme Court |
Mitts, Smith & Haughey, Grand Rapids, for plaintiff and appellant.
Cholette, Perkins & Buchanan, Grand Rapids (Grant J. Gruel, Grand Rapids, of counsel), for defendants and appellees.
Before the Entire Bnech.
This case was regularly assigned to former Justice ADAMS. Prior to his leaving the bench the following opinion, which I adopt, was prepared by him and submitted to other members of the Court.
Plaintiff, a passenger in an automobile, suffered serious sinjuries when the car in which she was riding collided with one owned by defendant Henry Peuler, Sr., and operated by defendant Henry J. Peuler, his minor son.
The declaration alleged specific acts of negligence and violations of the motor vehicle code on the part of defendant Henry J. Peuler. Liability on the part of Henry Peuler, Sr., was claimed solely on the basis of imputation of the driver's negligence under the ownership liability statute.
The pretrial statement indicated that the pleadings were complete and the case was at issue.
Subsequently the plaintiff procured the driving record of the minor son and thereupon moved to amend her declaration to incorporate a specific charge of actionable negligence on the part of Peuler, Sr., defendant-owner, in entrusting his vehicle to a driver known by him to be incompetent by reason of his past bad record. The court denied the motion, stating:
decision in connection with the alleged negligence of defendant driver. CLS1956, § 257.731 (Stat.Ann.1960 Rev. § 9.2431) specifically provides that no evidence of the conviction of a driver for a violation under that chapter or of a local ordinance shall be admissible in any court in a civil action.
In Elliott v. A. J. Smith Contracting Co., Inc., 358 Mich. 398, 100 N.W.2d 257, it was held in an action against a contracting company that the company might have been guilty of negligence in entrusting a motor vehicle to an employee unfit to be at the wheel. In that case the plaintiff was allowed to go to the jury on this theory, the action being solely against the employer and not against the employee truck driver. We do not conceive the rule there laid down to be confined solely to the employer-employee relationship. The negligence therein alleged might also occur between a parent and child if the child was unfit to be at the wheel. If the present action had been directed solely against the parent, and the child had not also been joined as a defendant, there would be no distinction between Elliott and this case.
The problem arises when we consider the provisions of C.L.S. 1956, § 257.731 (Stat.Ann.1960 Rev. § 9.2431), which reads as follows:
'No evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles shall be admissible in any court in any civil action.'
Is the language of the statute so broad as to bar all evidence with regard to a driver's past actions? We think not. The statute directs itself to 'evidence of the conviction' and nothing further. Conviction implies, and, in fact, is a judgment with regard to an occurrence that has taken place. This is undoubtedly the reason for the statutory prohibition. However, the facts of past occurrences are not barred by the statute. Neither would the results flowing therefrom such as revocation of a driver's license, Elliott v. A. J. Smith Contracting Co., Inc., supra, but only 'evidence of the conviction.'
Conceivably, a whole series of past accidents or other events might be shown if they were of such a nature as to lead to the conclusion that the son was unfit to be at the wheel and the father allowed him to drive, having knowledge that this was so. Liability under such a situation is no more unusual than the liability that might result from entrusting a car to a drunken man or a loaded pistol to an infant.
We think it clear that the prohibition of the statute is not as broad as it was construed to be by the trial judge. This is not a case where the motion to amend is denied simply because, in the opinion of the trial judge, the case has progressed so far that, as a matter of fairness, the motion should be denied. In such a situation we ordinarily would not interefere with the trial judge's discretion. Here, however, it was conceded at the time the motion to amend was made that the case was in such a posture that the motion would ordinarily be granted. The motion was denied due to a mistaken construction of the substantive law which led to the conclusion that the rights of one of the defendant would be prejudiced. We have seen that this is not the case. Moreover, the rights of the plaintiff were prejudiced in that the plaintiff was prevented from presenting to the jury all of his theories of the case consonant with the facts that could be developed upon trial. The trial court was in error. Its decision denying the motion to amend is vacated. The motion is granted. The matter is remanded for further proceedings in accordance with this opinion. Costs to appellant.
Appellant's contention that the trial judge's ruling is contra to Elliott v. A. J. Smith Contracting Co., 358 Mich. 398, 100 N.W.2d 257, is without merit, and Justice BLACK'S opinion (hereinafter referred to as the 'opinion') would allow the introduction of evidence of the defendant driver's participation in previous accidents contrary to the statute. I, therefore, dissent.
After the case was at issue and after the pretrial conference, plaintiff sought leave to amend her declaration by adding the following paragraph:
'That a further proximate cause of said collision was the negligence of defendant Henry Peuler, Sr., in permitting defendant Henry J. Peuler to operate his aforesaid vehicle, when he knew that said Henry J. Peuler had been guilty of repeated traffic violations had been involved in prior accidents, and had, shortly prior thereto, undergone a temporary suspension of his operator's license for habitual negligence.'
The statute (C.L.1948, § 616.1 [Stat.Ann. § 27.838]) provides that the trial court may permit amendments 'for the furtherance of justice, on such terms as shall be just.'
Appellant contends that the court's failure to follow Elliott v. A. J. Smith Contracting Co., supra, constitutes a clear failure to exercise discretion, if not, in fact, an abuse of discretion.
The majority opinion in Elliott () was based on servants, agents, and employment of improper persons, and the majority opinion discloses that it was not an opinion deciding a question such as is presented in this appeal, as is evidenced...
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...the express legislative prohibition was prejudicial to defendant.' The statute next received our consideration in Perin v. Peuler (Feb.1963), 369 Mich. 242, 119 N.W.2d 552. In this case, plaintiff, a passenger, suffered injuries when the car in which she was riding collided with one owned b......
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